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China’s recent promulgation of a series of laws, escially the new National Security Law (July 2015) and the country’s first Anti-Terrorism Law (December 2015), marks a shift towards the increased role of law in politics and governance. These laws came shortly after the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC), held in October 2014, had emphasised the role of the constitution in “comprehensively advancing the rule of law” in the country. The plenary session had also brought out the strong desire of the leadership to advance the “socialist rule of law with Chinese characteristics” in which “the constitution is taken as the core.”1 The drafting of the anti-terrorism law, and several such laws in 2015, was also very much in line with President Xi Jinping’s concept of an “overall national security outlook”, which he put forth in his address at the inaugural meeting of the National Security Commission in April 2014.2

Mixed Reactions

China’s first anti-terrorism law has drawn mixed reactions, mostly scepticism and criticism, from rights activists to media networks and from telecommunication firms to Western governments. In fact, the draft anti-terrorism law underwent two rounds of deliberations before being finally adopted in December 2015. The two earlier drafts (released in November 2014 and February 2015) had come in for strong international criticism.

Reacting to certain technical provisions of the draft law, US President Barack Obama had observed in a March 2015 interview to Reuters that it “would essentially force all foreign companies, including U.S. companies, to turn over to the Chinese government mechanisms where they could snoop and keep track of all the users of those services.” He added, “we've made very clear to them (Chinese Government) that this is something they're going to have to change if they expect to do business with the United States.”3 The German Government and the European Parliament too had expressed concerns on the draft law and its potential impact in terms of restricting the freedom of expression.4 On the other hand, the law was domestically seen as a brave and practical step in view of the growing threat of terrorism to China.5

The draft anti-terrorism law had also drawn strong criticism from global technology companies over the provision of providing ‘encryption keys’ to public security authorities for any data stored on their servers. Despite the fact that the draft law was twice revised before it was finally adopted in December 2015, serious concerns over the right to ‘proprietary data’ remain among business and telecommunication enterprises.

Making of the Law

The promulgation of the first anti-terrorism law can be traced back to October 2011 when China’s supreme legislative body, the National People’s Congress (NPC), passed the “Decision on Issues Related to Strengthening Anti-Terrorism Work”, which for the first time specifically defined the terms “terrorist organisation”, “terrorist” and “terrorism”.6 However, it was never made into a law. Prior to it, considering the gravity of the 9/11 terrorist attacks, modifications were made subject to Amendment III in China’s Criminal Law on December 29, 2001.7

It is noteworthy that the Chinese Constitution does not directly address the issue of extremism and terrorism. Until the passage of the anti-terrorism law, it was under the Criminal Law and other national laws like the State Security Law that anti-terrorism related provisions were mentioned. For instance, Article 120 of the Criminal Law stipulated imprisonment for “whoever forms, leads, and actively participates in a terrorist organisation.”8 Similarly, Articles 1, 4 and 36 of the constitution basically dealt with disruption of the social system and public order within the state at large.9 None of these laws offered any clear definition of ‘terrorism’ as such.

In the absence of a universally agreed upon definition of terrorism, China’s first anti-terrorism law too has defined it in broad terms:

The term “terrorism” is defined as any proposition or activity—that, by means of violence, sabotage or threat, generates social panic, undermines public security, infringes on personal and property rights, and menaces government organs and international organizations—with the aim to realise certain political and ideological purposes.”10

The new anti-terrorism law reflects China’s growing security concerns over the rise in militancy among the Muslim Uyghur community in Xinjiang Province. In recent years, there have been reports of Uyghur militants carrying out attacks outside Xinjiang as well. The official Chinese media cited a knife attack that left 29 people dead at a train station in March 2014 as giving greater urgency to the anti-terrorism legislation. The attack by four assailants was widely attributed to a Uyghur group.11

A similar attack had occurred in September 2014 in a coal mine in Xinjiang. Again, in May 2014, 31 people died when a busy market in Xinjiang’s capital Urumqi was bombed.12 According to a government report, Uyghur separatists were responsible for 200 attacks between 1990 and 2001, causing 162 deaths and injuring more than 440 people.13 China maintains that these militants are linked to the ‘Eastern Turkestan’ separatists who are part of the ‘global Islamic terror network’. However, some experts attribute these attacks to ‘community clashes’ between the ethnic Han majority and the Turkic Muslim Uyghur minority.

The approved draft of the anti-terrorism law, which came into effect from January 2016, consists of 97 articles detailed in 10 chapters, broadly dealing with issues like the designation of terrorist organisations and personnel (chapter 2), security and prevention (chapter 3), intelligence gathering and investigation (chapters 4 and 5), emergency response and international cooperation (chapters 6 and 7), and safeguards and legal liabilities (chapters 8 and 9).

According to Xinhua, China’s new anti-terrorism law also seeks to establish “a national leading organ for counter-terrorism work” and a national intelligence centre “to coordinate inter-departmental and trans-regional efforts on counter-terrorism intelligence and information.” It also allows the People’s Liberation Army (PLA) to take part in counter-terrorism operations abroad.14

Addressing Concerns

Compared to the previous draft that was introduced in February 2015, the final draft law appeared much more forceful and broader in scope. For instance, while the previous draft required telecom companies to provide data encryption keys to the security authorities, Article 18 of the final draft stated that the companies instead need to “provide technical support and assistance, including decryption, to police and national security authorities in prevention and investigation of terrorist activities.”15

In view of continuing concerns among telecommunication companies, particularly US companies, over the provisions of network security and content monitoring in the draft law, the Chinese foreign ministry spokesperson, in his regular briefing on December 23, 2015, clarified that the new draft law “will not restrict companies' lawful business, nor will it leave a backdoor open or infringe companies' intellectual property right and citizens' freedom of expression on line.”16

Arguing that “the clause (Article 18 of the new draft law) reflects lessons China has learnt from other countries and is a result of wide solicitation of public opinion," senior legislator Li Shouwei of the Legislative Affairs Commission under the NPC’s Standing Committee stated that the clause “will not affect companies' normal business nor install backdoors to infringe intellectual property rights, or….citizens freedom of speech on the internet and their religious freedom." He asserted that the US and EU counter-terrorism legislations were studied while drafting China’s anti-terrorism law.17 In fact, according to a statement by the NPC Standing Committee, the new definition of terrorism is inspired by a Shanghai Cooperation Organisation (SCO) counter-terrorism convention as well as by the UN's Declaration on Measures to Eliminate International Terrorism.18

However, there are still concerns that the new law seeks to extract critical information in the name of promoting security. It is also not specified in the law as to what constitutes lawful measures of ‘prevention’. The new law stipulates strict censorship pertaining to dissemination of any terrorism-related sensitive information. It calls for restrictions on reporting of terrorist activities in China that may lead to repeatability of acts and has stipulated a blanket cover on reporting of anti-terrorism responses.

Censoring Media

According to Xinhua, the new draft law stipulates that “no institutions or individuals shall fabricate and disseminate information on forged terrorist incidents, report on or disseminate details of terrorist activities that might lead to imitation, nor publish scenes of cruelty and inhumanity in terrorist activities.” It further states that, “None, except news media with approval from counterterrorism authorities in charge of information distribution, shall report on or disseminate the personal details of on-scene workers, hostages or authorities' response activities.”19

The nature of censorship which the new law formulates on terrorism-related information appears more severe than the common practice of media censorship in China. Interestingly, a commentary published in Xinhua defended it arguing that “The various restrictions on media imposed by the new law only intends to prevent copy-cat crimes, protect frontline anti-terror workers and keep society from the harm of hearsay.”20

People’s War Strategy

In the name of formulating “people’s war” strategy, the final draft law entails ‘civilian participation’ (Article 5) as a key component of the counter-terror framework. The two-fold purpose of civil participation are intelligence gathering and formation of volunteer groups in the event of any anti-terrorist action. In fact, in August, 2014, China had mobilised local residents in Hotan Prefecture of Xinjiang in search of suspected terrorists. The draft law stipulates the setting up of formal forces or volunteer groups in the communities (Article 74). It also seeks to establish joint coordination mechanisms to mobilise grassroots organisations (Article 8) and also encourage civilians to work as informants to promote intelligence gathering (Article 44).

At the same time, the new anti-terrorism law reiterates the duty of all organisations and individuals to cooperate with the authorities (Article 9). It also seeks the introduction of the knowledge of prevention and response to terrorist activities (Article 17) among departments of education and human resource in China. There are doubts that the intended provisions may require mandatory military service or training in future particularly in times of emergency. The given provision is more ‘conformist’ and intends to seek compliance with the state’s objectives subject to ideological training.

The new law also provides for honours and awards for those who support the prevention of terrorist activities (Article 10) and those who suffer injuries or are killed while discharging their duties against terrorist activities (Article 75). It is crucial to note that the framework of monitoring and action that the new anti-terrorism law in China seeks to take revolves around the strategy of “people’s war” based on infusing a sense of duty among civilians in order to draw their active support against terrorism.

Need for Right Balance

It has been observed that the anti-terrorism law has less to do with physical threats to China and is more directed towards the expansion of restrictions. From the Chinese point of view, the law is necessary for the security of citizens as it attempts to create a statutory basis for future anti-terrorism activities. At the same time, it also raises the larger question of the possible misuse of the rhetoric on terrorism to grant undue discretionary powers to the government, thus severely infringing upon the individual liberty of citizens in the process.

Though the new anti-terrorism law in China strives for stricter preventive measures and offers the necessary legal framework against any kind of terrorist activities, but, contrary to the Chinese claim of the law being in accordance with international practices, there is enough scope for creating ‘emergency situations’ in order to restrict the rights of the people or heavily suppress any local dissent.21

The problem lies not just with its tough provisions but the manner of its operation and its implications in terms of tightening political control. As China’s new anti-terrorism law falls short of striking a ‘fair deal’ between liberty and security, it is important that the nature of its operation reflects upon countering ‘legitimate’ terrorist threats without compromising on ‘citizens' and organisations' lawful rights and interests in the process’, which the law itself provides for.

Abhishek Pratap Singh is a Doctoral Candidate at the Centre for East Asian Studies, School of International Studies, Jawaharlal Nehru University, New Delhi.